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Generally speaking, courts have inherent authority to disqualify parties, representatives, and consultants from participating in litigation. Attorneys, expert witnesses, and litigation consultants may face disqualification motions in the event of a conflict of interest. With the rapid expansion of the eDiscovery industry, however, a new question has arisen: If an eDiscovery vendor has a potential conflict of interest, when should it be disqualified? What standard should apply?

To put the problem in perspective, imagine that you manage discovery at a law firm representing the defendant in a contentious wage and hour dispute, and you recently hired an eDiscovery vendor to assist you in scanning and coding your client’s documents, at a cost of $50,000. Two months later, you receive notice from your vendor that the plaintiff’s counsel has requested its services in connection with the same case. How would you react? Would you expect a court to disqualify the vendor if it accepted the engagement? This scenario occurred in Gordon v. Kaleida Health, resulting in the first judicial order squarely addressing vendor disqualification. The Kaleida Health court ultimately denied the defendant’s motion to disqualify, allowing the vendor to continue participating in the case.

Discussion of Gordon v. Kaleida Health

Kaleida Health arose out of a now commonplace dispute between a hospital and its hourly employees under the Fair Labor Standards Act (“FLSA”). The plaintiffs, a group of hourly employees, sued the defendant, Kaleida Health, a regional hospital system, claiming they were not paid for work time during meal breaks, shift preparation, and required training, in violation of FLSA.

Kaleida Health’s attorneys, Nixon Peabody, LLP (“Nixon”), hired D4 Discovery (“D4”), an eDiscovery vendor, to scan and code documents for use in the litigation. In connection with the work, Nixon and D4 executed a confidentiality agreement. D4 was to “objectively code” the documents using categories based on characteristics of the document, such as the author and the type of document. The coded documents would then be used by Nixon in preparing for upcoming depositions.

Two months later, plaintiffs’ counsel, Thomas & Solomon, LLP (“Thomas”), requested D4 to provide ESI consulting services to it in connection with the same case. D4 notified Nixon, who promptly objected based on the scanning and coding services D4 provided the defendant during the litigation. D4 then provided assurances that Kaleida Health’s documents would not be used in consulting the plaintiffs and that an entirely different group of employees would work with the plaintiffs’ counsel. Nixon, on behalf of Kaleida Health, persisted in its objection to D4 working for the plaintiffs and ultimately filed a motion to disqualify the vendor.

Magistrate Judge Foschio’s analysis began by outlining the standard governing the disqualification of experts and consultants. According to the court, the entity sought to be disqualified must be an expert or a consultant, defined as a “‘source of information and opinions in technical, scientific, medical or other fields of knowledge’” or “one who gives professional advice or services” in that field. After the moving party makes this initial showing, it must meet two further requirements. First, the party’s counsel must have had an “‘objectively reasonable’ belief that a confidential relationship existed with the expert or consultant.” Second, the moving party must also show “that . . . confidential information was ‘actually disclosed’ to the expert or consultant.”

Applying this standard, Judge Foschio ultimately found that because the scanning and objective coding services performed by D4 did not require specialized knowledge or skill and were of a “clerical nature,” D4 was not an “expert” or “consultant.” Further, the court determined that the defendant failed to prove that it provided confidential information to D4 because it did not show “any direct connection between the scanning and coding work . . . and Defendants’ production of [its] ESI.”

Rejecting Kaleida Health’s argument, the court declined to apply to D4 and other eDiscovery vendors the presumption of confidential communications, imputation of shared confidences, and vicarious disqualification applicable in the context of attorney disqualification when a party “switches sides.” The court— as an alternative basis to its finding that D4 did not act as an expert or consultant—held that disqualification was improper because no “prior confidential relationship” existed between Kaleida Health and D4.

Because Kaleida Health represents the first significant attempt at exploring the issues surrounding vendor disqualification, whether later courts should follow Kaleida Health’s lead in exclusively applying the disqualification rules for experts and consultants to vendors becomes the main issue in its wake. To come to a conclusion on this point, one must first explore the different schemes that courts may apply when considering disqualification.

This above excerpt is a part of article originally written by Michael A. Cottone, a candidate for Doctor of Jurisprudence, The University of Tennessee College of Law, May 2014.
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